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NYCLU Subway Search Challenge Goes To Trial

The New York Civil Liberties Union’s legal challenge to the New York City’s subway bag search policy began today in federal court in Manhattan. The NYPD’s program of subjecting millions of innocent New York subway riders to suspicion-less police searches is unprecedented. While fully supporting reasonable and effective security measures, the NYCLU contends that this program marks a dramatic and unjustified erosion of the privacy rights of the American public. The NYCLU charges the search procedures violate the Fourth Amendment rights of those subject to it.

“This NYPD bag search policy is unprecedented, unlawful and ineffective,” said Donna Lieberman, Executive Director of the NYCLU. “It is essential that police be aggressive in maintaining security in public transportation. But our very real concerns about terrorism do not justify the NYPD subjecting millions of innocent people to suspicion-less searches in a way that does not identify any person seeking to engage in terrorist activity and is unlikely to have any meaningful deterrent effect on terrorist activity.”

The trial, expected to last through Wednesday, November 4th, will take place at US District Court for the Southern District at 40 Center Street in Judge Richard Berman’s courtroom. During the trial, there will be testimony from the five plaintiffs, various police and government officials and security experts.

In addition to violating the constitutional rights of millions of subway riders, the NYPD policy appears to be ineffective as a security measure. The NYPD is not conducting searches at most subway entrances at any given time, is giving advance notice about searches at those entrances where searches are being conducted, is allowing people selected for a search to walk away, and is not basing the searches on any suspicious activity of individuals. As common sense would suggest, the NYPD’s program is virtually certain neither to catch any person trying to carry explosives into the subway system nor to deter such an effort. Indeed, given the way the Department has implemented its search program, the only people being searched are innocent users of the subway system.

“We have no objection to reasonable searches, but we cannot and will not stand by while the police department seeks to expunge the Fourth Amendment from the Constitution with a program that subjects millions of people to suspicion-less searches that serves virtually no public-safety purpose,” said Christopher Dunn, Associate Legal Director of the NYCLU, lead counsel on the case.

Assisting on the case are Arthur Eisenberg, Legal Director of the NYCLU, and NYCLU attorneys Jeff Fogel, Palyn Hung and Corey Stoughton.

Affidavits for NYCLU witnesses

Declaration of Partha Banerjee *
Declaration of Joseph Gehring, Jr. *
Declaration of Brendan Macwade *
Declaration of Norman Murphy *
Declaration of Charles Pena *
Declaration of Gene Russianoff *
Declaration of Andrew Schonebaum *

NYCLU Legal Brief (October 26, 2005) *

NYCLU complaint (August 4, 2005) *

Plaintiffs’ biographies

* These documents require the free Adobe Reader.

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